Abstract

This thesis maps the present situation of court-connected mediation in Malaysia. Such mediation takes two forms: court-annexed mediation undertaken by a private mediator and judge-led mediation undertaken by a judge. It traces the growth and development of mediation in Malaysia; investigates the factors that impact upon the success of mediation in other jurisdictions; and identifies the barriers and the enablers to the uptake of court-connected mediation in Malaysia. It examines in this context theories of mediation, justice and change management. It reviews the literature on these and on the development of mediation in selected common law jurisdictions. Its findings are drawn from that literature and also from two empirical studies: a survey of lawyers in Sabah and Sarawak and interviews with selected interviewees in East and West Malaysia, including judges. The findings identified that the use of mediation has been driven by: its utility in reducing court backlogs; increasing knowledge of the benefits of mediation; leadership by the judiciary, professional associations and government; training and exposure; and traditional practices of mediation. The findings also identified that three key stakeholders have resisted mediation: judges, lawyers, and the public. This is related to their attitudes and prevailing professional cultures. Judges fear a loss of judicial authority. Lawyers fear losing income. The public lack knowledge of mediation and see judges as the appropriate decision makers to decide their disputes. The thesis also reveals that a sizeable minority of lawyers feel they do not have a significant role in advising their clients to mediate. This is identified as a key barrier to the greater use of mediation in other jurisdictions. The implications of the findings are that if mediation is to play a greater role in the Malaysian civil court system then a greater emphasis on education and awareness of the importance of mediation and its benefits amongst stakeholders is required. It makes a number of recommendations for the more effective use of court-connected mediation including consideration of mandatory mediation.